On Monday, legendary conservative Supreme Court Justice Clarence Thomas appeared to argue that social media companies like Facebook and Twitter should no longer be able to hide behind protections like the First Amendment and Section 230 in their bid to regulate certain forms of speech on their platforms.
Here is a breakdown of what Thomas wrote, and what it could mean for Big Tech giants in the context of political speech and online censorship.
Common carriers and public accommodations
“Even if digital platforms are not close enough to common carriers, legislatures might still be able to treat digital platforms like places of public accommodation. Although definitions between jurisdictions vary, a company ordinarily is a place of public accommodation if it provides ‘lodging, food, entertainment, or other services to the public … in general,’” Thomas wrote, adding that “Twitter and other digital platforms bear resemblance to that definition.”
In simple terms, a public accommodation offers goods and services to the general public.
Thomas then directly hinted that legislators would have the legal authority to prevent social media platforms from effectively censoring speech by comparing these companies to common carriers and public accommodations.
“The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. ‘[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of’ digital platforms,” he wrote.
As described by The Daily Wire, “Section 230 was passed into law as part of the Communications Decency Act of 1996 and legislates Internet content. Written in the earlier days of the web, Section 230 now finds itself at the center of an ongoing debate between those who believe it should be repealed, those who believe it should be modified, and those who believe it should be left unchanged.”
“Section 230 is part of the Communications Decency Act, passed into law in 1996, which was written to regulate online pornography. In broad terms, Section 230 provides website publishers with immunity from prosecution regarding third-party content placed on their site,” The Daily Wire continued.
Thomas noted that Section 230 has been used to give social media companies “immunity” for “bad-faith” actions in the form of removed content.
“Threats directed at digital platforms can be especially problematic in the light of [Section 230], which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content,” Thomas said. “This immunity eliminates the biggest deterrent — a private lawsuit — against caving to an unconstitutional government threat.
With his comments, Thomas is hinting at two fundamental arguments that could be pivotal elements of the legislative strategy for hindering Big Tech’s efforts to suppress conservative speech online.
Firstly, the argument that companies like Twitter are “public accommodations” would provide legislators with effective tools to regulate their control of content — for better or for worse.
Secondly, the explicit judicial acknowledgement that Section 230 is being leveraged by social media companies to provide “immunity” for their “bad-faith” removal of third-party content provides a further indication that the alteration of Section 230 is a possibility in the near future.
Whether these changes result in positive or negative change in the area of online speech, Clarence Thomas’ comments have made it clear that — at least in his view — such changes could soon become a legislative reality.
Ian Haworth is an Editor and Writer for The Daily Wire. Follow him on Twitter at @ighaworth.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.
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